Professional defence

Labour & European Law ReviewWeekly Issue 44007 October 2015

The law says that employees are entitled to be accompanied at disciplinary and grievance meetings by a trade union representative. In Stevens v University of Birmingham, the High Court held that it was a breach of the implied term of trust and confidence to deny an employee the right to be accompanied by the representative of a professional defence organisation at an investigation meeting.

Basic facts

Professor Stevens was employed by the University of Birmingham as Chair of Medicine (Diabetes and Metabolism). His contract of employment was dependent upon him maintaining an honorary appointment contract with the Heart of England NHS Foundation Trust (HEFT). As a result, he was subject to two contracts of employment – one with the University and one with HEFT. Following investigations into allegations of misconduct in relation to clinical trials overseen by Professor Stevens on behalf of the University and HEFT, he was suspended from his employment at the University.

He was then invited to an investigation meeting and told that he had the right, under an agreement negotiated with the UCU, to be accompanied by a trade union representative or an employee of the University. Professor Stevens explained that he was not a member of a trade union nor were they any suitable employees he could ask to accompany him and asked instead to be accompanied by a representative of the Medical Protection Society (MPS), Dr Palmer.

The university refused on the grounds that this was not allowed under the terms of his contract nor under the agreement it had reached with the UCU. If it allowed Professor Stevens his choice of representative, it would open the floodgates to similar requests. Professor Stevens then asked the High Court to decide whether he had a contractual entitlement to be accompanied by Dr Palmer.

High Court decision

The High Court judge held that although he could not imply a term into Professor Stevens’ contract that he was entitled to be accompanied by a representative of the MPS, he had no hesitation in deciding that the University’s behaviour in refusing his request “was such as to seriously damage the relationship of trust and confidence” between the parties.

Although an investigatory meeting was not adversarial, it was nevertheless a crucial stage in the process allowing both parties to get to the truth and to put the investigator in the best possible position to provide a comprehensive and balanced report to the decision maker. The allegations being investigated were extremely serious and had potentially serious ramifications for Professor Stevens both personally and professionally.

Professor Stevens had explained why he could not approach anyone in his own department to represent him and even if someone from another department could have attended they did not have the technical know-how of Dr Palmer. The University obviously accepted such support was necessary, or they would not have provided their own investigating officer with the technical assistance of a senior member of staff.

Professor Stevens had been helped by Dr Palmer up until this stage, making the University’s decision to deny him representation at the interview all the more remarkable. Other witnesses had been treated more favourably by the University in terms of their choice of companion. Professor Stevens was not being afforded the same treatment, despite the fact that he was just as much a witness of fact as they were. A further key point highlighted by the judge was the fact that had HEFT initiated the proceedings then Professor Stevens’ choice of companion would have been permitted.

Finally, the judge held that professional defence organisations serve a similar function to unions in these situations, having similar know-how and experience. Although the University did not want to upset the UCU, the judge thought it was unlikely that it would object to an employer agreeing to confer what might be regarded as more favourable treatment on its employees than it had agreed with the union, as long as this did not result in union members being treated less favourably than non-union members.